United States v. Private First Class SHAWN S. KEEN, ARMY 20150168

PFC Shawn S. Keen pleaded guilty to assault consummated by battery and was convicted, contrary to plea, of rape at a general court-martial tried by a military judge alone.
The military judge was Lieutenant Colonel Wade Faulkner, who had previously served as Chief of Military Justice (CoJ) for III Corps and Fort Hood from July 2011 to June 2013.
The alleged rape was reported to CID on December 10, 2012 and a probable-cause opinion was rendered May 3, 2013 by a trial counsel who served under the CoJ’s supervision; charges were preferred in October 2014 and referred in January 2015.
The military judge did not disclose to the parties during trial that he had been CoJ during the investigation and that the case was listed on his military-justice case tracker (which included a remark that the appellant apologized).
Defense counsel and appellant state they would have questioned the judge or chosen a different forum had they known; the judge later said he had no recollection of the case when presiding.
This court found the judge’s prior involvement and knowledge created a reasonable question as to impartiality, held the judge was disqualified under R.C.M. 902(a), treated the error as structural, and set aside findings and sentence, remanding for possible rehearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the military judge acted as counsel or otherwise had disqualifying prior involvement such that his impartiality could reasonably be questioned	Appellant: The judge’s prior role as CoJ when the offense was investigated and his case-tracker entry show involvement and knowledge that disqualify him and, if undisclosed, cannot be waived	Government: The judge had no recollection of the case and no actual participation as counsel; parties declined to challenge him at trial	Held: The judge’s prior supervisory role and the presence of the case on his tracker reasonably called his impartiality into question; he was disqualified under R.C.M. 902(a); error was structural; findings and sentence set aside; rehearing allowed

United States v. Butcher, 56 M.J. 87 (C.A.A.F. 2001) (accused’s right to an impartial judge)
United States v. Wright, 52 M.J. 136 (C.A.A.F. 1999) (impartiality requirement for military judges)
United States v. Martinez, 70 M.J. 154 (C.A.A.F. 2011) (R.C.M. 902 provides bases for disqualification)
United States v. Kratzenberg, 20 M.J. 670 (A.F.C.M.R. 1985) (structural error where judge sat as sole factfinder)
United States v. Peterson, 23 M.J. 828 (A.C.M.R. 1986) (due process implications of biased adjudicator)
Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) (opinions on judicial impartiality and recusal)
United States v. Burrer, 22 M.J. 544 (N.C.M.R. 1986) (remedy and remand where prejudice/risk of harm difficult to assess)